Plus, a couple days ago, Gore was on the "Today" show (right after his son was arrested), and we got this:

"I've kind of fallen out of love with politics."

... which I blogged about. But there was also this, which I didn't mention:

Gore laughed when asked if he was ready to endorse a candidate for president. He said his evaluation would be based on what each decides to do about climate change.

"Some of them have made good, positive statements, but it's still treated as a side issue. I will predict for you that within the next 500 days that this issue will be the Number One issue on the agenda," he said.

Come on! It's obvious. He's not a seer. He's talking about something within his own personal knowledge.

ADDED: My analysis of standing is at that link, but we're talking about it in the comments here. Marty Lederman was nice enough to comment and say he appreciated my analysis, so let's look at what he wrote about the case. He says that the standing analysis is "complicated -- real FedCourts inside baseball" and opines that ordinary people are unlikely to sit through the explanation.

This really is a problem with fedcourts doctrine. You have strange, alienating doctrine that prevents courts from doing what it seems that courts are for: deciding the case on the merits. Judges act as though they are carrying out some higher calling when they decline to act, and maybe they are, but if what they are doing is incomprehensible to people, they are likely to draw their conclusions about the quality of the case based on the outcome.

Lederman says that the Supreme Court's standing doctrine is "a mess" -- but that's mainly true because the Court is composed of some very different individuals, some of whom would never have adopted the constitutionalized 3-part injury-in-fact test in the first place and because the test must be applied in complex and varied fact settings, which has given the Court's swing voters room to affect outcomes in a pragmatic fashion. The mess could be cleaned up pretty easily by replacing a justice or two. Which way do you want it cleaned up? Would you rather have it kept a mess than cleaned up the way you don't like? If yes, then you should understand why we've got the mess.

Marty observes that whatever you might say about the injury to these plaintiffs, it can at least be said that the program they challenge is injuring someone, and it's a real, not a hypothetical controversy. The constitutional aspect of standing doctrine is a gloss on the Article III definition of "the Judicial Power" in terms of "cases" and "controversies," and Marty seems inclined to revive the way the Warren Court used to talk about standing doctrine. We definitely have a real controversy, so why stress the concrete and particularized injury to these plaintiffs? He blames the defendants for withholding the information about who the program has actually targeted: "What constitutional value is served by allowing that type of uncertainty -- wholly a function of the government's own refusal to identify the victims -- to be grounds for avoiding a resolution on the merits?"

I think the answer, for those who support the current standing doctrine, is that standing is required across the board, and you don't get to create exceptions to the requirements in individual instances where the case seems justified. Standing is a matter of the constitutional limit on judicial power, so nothing that the parties do can enlarge it. Even if the Executive Branch wanted the federal court to decide a case beyond the Article III judicial power they would have to decline. If Congress passed a statute granting jurisdiction beyond the judicial power, it would be unconstitutional. These constitutional limits on the courts' power are just as important as the limits on the executive power that you wish they would address.

That's the strong view of standing -- which goes along with a strict view of separation of powers. Not all the justices support the strong view all the time. I note that in Laidlaw, the case that Judge Gilmore relied on, Justice Scalia was forced to rail about this sort of thing in dissent (joined only by Justice Thomas).

And let me flag this new post by Patterico, which shows that Glenn Greenwald was wrong when he asserted that only the dissenting judge in the 6th Circuit case had anything to say about the substantive merits of the plaintiffs' claims. In fact, Judge Batchelder wrote that the plaintiffs failed to state a claim under Title III and FISA. As quoted by Patterico (who adds emphasis):

It is undisputed that the NSA intercepts international, rather than domestic, communications, so . . . Title III does not apply. Moreover, because the plaintiffs have not shown, and cannot show, that the NSA engages in activities satisfying the statutory definition of “electronic surveillance,” the plaintiffs cannot demonstrate that FISA does apply.

Patterico is right, but I'm not impressed by the way Batchelder disposed of these two claims on the merits. With respect to the plaintiffs' constitutional claims, she said that the plaintiffs' lacked standing. But the same lack of standing would apply to the statutory claims and should have precluded her from reaching the merits. And Batchelder ought to have wanted to coordinate with Gibbons on a single opinion. It looks rather obvious to me that Batchelder wanted to have it both ways and be strict about standing and still talk about the merits. That doesn't add up. And Gibbons did well to refuse to join it.

I can't stand Greenwald's posturing about how all the judges who have reached the merits have found the program illegal. It's not surprising that the judges who are lax about standing also lean toward restricting the President's power in national security. These are both liberal positions. The judges who stop at the level of standing are the judges who would be most likely to find the program legal. So Glenn's point doesn't impress me. Patterico shows that Glenn is wrong. But ironically, Batchelder would look a whole lot better if Glenn were right.

That's the name of the new book by Steven E. Landsburg and the name of his 1996 article arguing "that H.I.V. would spread less quickly if relatively chaste people each took on a few more sexual partners":

At a given bar on a given night, he wrote, these disease-free singles would then make the pool of sexually active adults safer. The article was based largely on an academic paper by another economist, Michael Kremer, theorizing that the spread of AIDS could be slowed in England if everybody with fewer than about 2.25 partners got around a bit more

The link is to a book review by David Leonhardt, who doesn't think much of what he calls the the economists' "imperialist movement" -- intruding their analysis into all sorts of human affairs:

[The book is] short on the nuance that comes from real human stories. Landsburg’s characters tend toward the hypothetical... and his arguments, as he puts it at one point, can sound like “idle Sunday dorm-room chitchat.”

This problem plagues many of the new economic imperialists: like the overly chaste singles who are supposedly contributing to the H.I.V. epidemic, they don’t get out enough. They are asking good questions about epidemiology and psychology, but they are not spending much time with epidemiologists and psychologists, let alone with the people who are the subjects of their academic research.

IN THE COMMENTS: One of the coolest things about blogging: the author of the book appears and defends himself (in a thread that hilariously begins with the comment "He was great on Barney Miller").

Western civilisation, in its best sense, was born with the promenade. Walking is a sensitive, spiritual act. Jogging is management of the body. The jogger says I am in control. It has nothing to do with meditation.

"The Sarkozy jog, say his critics, is a sad imitation of the habits of American presidents, and a capitulation to 'le défi Américain' (a phrase that was the title of a book published here as 'The American Challenge') as bad as the influx of Hollywood movies," writes Boris Johnson, a British member of Parliament and confirmed jogger, in the Telegraph.

"I am not deterred . . . by the accusation that jogging is right-wing," he says. "Of course it is right-wing, in the sense that the facts of life are generally right-wing. The very act of forcing yourself to go for a run, every morning, is a highly conservative business. There is the mental effort needed to overcome your laziness.

"Charles de Gaulle . . . moved with the stately undulation of a giraffe, and never broke into so much as a trot."

[A] recently-opened porcelain palace features an Egyptian facade, soothing music and more than 1,000 toilets spread out over 32,290 square feet....

"We are spreading toilet culture. People can listen to gentle music and watch TV," said Lu Xiaoqing, an official with the Yangrenjie, or "Foreigners Street," tourist area where the bathroom is located. "After they use the bathroom they will be very, very happy."

Spreading toilet culture, eh? Well, I hope other countries take up the challenge and try to entertain us with bathrooms.

U.S. Circuit Judge Julia Smith Gibbons, one of the two Republican appointees who ruled against the plaintiffs, said they failed to show they were subject to the surveillance....

Although the Bush administration said in January the program is now overseen by a special federal intelligence court, opponents said that without a court order, the president could resume the spying outside judicial authority at any time. The Justice Department has said the case is moot.

You may remember that I was very critical of the district judge's decision, both on this blog...

It's hard to understand why a judge writing an opinion in such a high-profile case, dealing with such difficult law, would not put immense effort into creating an outward appearance of heavy scholarly effort and pristine neutrality. Does the judge lack the competence to do it? Does the judge have a hot feeling of righteousness and outrage about the case and also think it's good to show it? Perhaps it's some subtle combination of those two things.

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

ADDED, after reading the case: There are three opinions from each of the three judges on the 6th Circuit panel. In the main opinion, Judge Batchelder goes through all the claims separately, following the 3 parts of the injury-in-fact test for standing, but her basic position is made clear in her discussion of the First Amendment claim.

As she sees it, the plaintiffs alleged that they have a "subjective belief that the NSA might be intercepting their communications," and that, if this is occurring, it interferes with their professional obligation as journalists, academics, and lawyers to maintain confidentiality in their telephone communications. Even though the First Amendment takes account of the "chilling effect," Batchelder writes, plaintiffs can't satisfy the injury requirement with their own "purely speculative fears."

She relies heavily on the 1972 Supreme Court case Laird v. Tatum:

The Laird plaintiffs alleged that the Army surveillance program caused a chilling effect on their First Amendment rights in that they and others were reluctant to associate or communicate for fear of reprisal, stemming from their fear that the government would discover or had discovered them (and their activities) by way of the secret surveillance. The harm alleged in the present case is no more substantial; the plaintiffs allege a similar chilling effect on their First Amendment rights, in that they are bound by professional and ethical obligations to refrain from communicating with their overseas contacts due to their fear that the TSP surveillance will lead to discovery, exposure, and ultimately reprisal against those contacts or others. But unlike the Laird plaintiffs, the plaintiffs here do not assert that they personally anticipate or fear any direct reprisal by the United States government, or that the TSP data is being widely circulated or misused. Indeed, the district court stated that, to date, no one has been exposed or prosecuted based on information collected under the TSP. ACLU v. NSA, 438 F. Supp. 2d at 771.

The plaintiffs also attempted to say that they were injured because their overseas contacts might not want to talk to them. But the absence of a causal link between the injury and the NSA program -- the required second prong of the standing test -- would alone defeat the plaintiffs' standing.

Judge Gibbons concurs, deciding the standing question on a single, straightforward point: The plaintiffs failed to provide evidence that they have been subjected to the program, so they lack the injury needed to meet the constitutional standing test.

Gibbons is also straightforward in noting her disagreement with the dissenting Judge Gilman. Gilman relies on Friends of the Earth v. Laidlaw, a 2000 Supreme Court case that is rather generous in assessing the injury of plaintiffs who sued about pollution to a waterway near where they live. Gibbons says Laidlaw is different because the plaintiffs' proximity to the water was concrete and real (even if the pollutant was infinitesimal), whereas here, the plaintiffs can only guess that that the government is intercepting their calls.

That, in Gibbons' view, made their case more like Los Angeles v. Lyons, in which the Court denied standing to a man whose claimed injury was a fear that he'd be subjected to a police chokehold. The Laidlaw plaintiffs premised their injury on fear too, but the activity that they complained of physically impinged on them. (They were near the river.) Lyons was only worried that the activity might be directed at him. (Lyons had been choked in the past, and that made him more intensely fearful, but his failure to show he would be choked in the future meant he lacked standing to seek prospective relief.)

What Lyons, Laird, and Laidlaw really show, I think, is that the Supreme Court has wavered in how stringently it applies its own test. It is lenient about standing in environmental cases (as we saw again this Term in Massachusetts v. EPA, the case about global warming). By contrast, is tough in police brutality cases, like Lyons. If the standing test is to be applied according to context and not abstract principle, then Laird is the most relevant case. So I would expect the Supreme Court to agree with Batchelder and Gibbons.

But this doesn't mean that the dissenting judge is obviously wrong. Gilman thought fear was enough as long as it was reasonable and well-grounded. Focusing on the lawyers and relying on Laidlaw, he thought they'd done enough to make their fear sufficiently concrete: They showed that they are the sort of persons that the program seems designed to apply to. Isn't that enough like living near the river?

If we concede that there can be flexibility in the constitutional standing test -- and not everyone does -- we might want to use that flexibility and side with Gilman, so that it isn't impossible to challenge a secret program. The plaintiffs couldn't go any further than they did. The government will not let them see the evidence of whether the program was in fact applied to them, because it relies on the state secrets privilege. This is a frustrating bind, but why not resolve it in favor of empowering the court to address the merits of the case?

Do Batchelder and Gibbons convince us to resolve the bind in favor of the government that asserts the privilege? Batchelder arranges things so that the evidence behind the privilege supposedly doesn't matter. Apparently, what the plaintiffs don't know doesn't hurt them: The only injury they have – whether they are being spied on or not – is their fear that they are being spied on. Then -- how neat -- secretiveness avoids the injury.

Gibbons thinks it's important to admit the effect the privilege is having on the standing issue. But then she simply abides by the privilege. It excludes what it excludes, and the plaintiffs are stuck with the consequences. Then -- also neat -- their injury is insufficient because they didn't -- they couldn't! -- show that the program had been applied to them.

Naturally, Batchelder and Gibbons don't acknowledge that they feel a pull in the opposite direction from Gilman. Their context-sensitive response has to do -- I'm guessing -- with sympathy toward the interest in preserving the secrecy of the program and worry that the court's intrusion into this matter would have unpredictable negative consequences. I'd explain Laird and Lyons that way too. You may not like this sort of pragmatism in constitutional analysis, but you can't easily harmonize the case law without it.

So much for the injury requirement. Let's consider the second and third prongs of the standing test: causation and redresability.

There really is quite a problem with causation -- the requirement that the complained-of injury was caused by the defendants' actions. As Batchelder put it -- Gibbons avoided the issue -- the problem with causation is that the defendants' action was the failure to obtain a warrant, and since any absence of a warrant would be unknown to the defendant, it couldn't be the source of any disinclination to speak.

According to Batchelder:

The mere fact that the United States government is aggressively prosecuting a worldwide War on Terror — in which, by the plaintiffs’ own “well founded belief,” these contacts are likely suspects — would appear sufficient to chill these overseas contacts regardless of the absence of FISA protections.

Here's Gilman's response: "If the TSP did not exist, the attorney-plaintiffs would be protected by FISA’s minimization procedures and would have no reason to cease telephone or email communication with their international clients and contacts." No reason? Part of the political attack on the program has always been that the FISA requirements are not hard to meet. If so, following them would still leave the plaintiffs at risk.

One would think that Gilman should have had to say that the failure to adhere to FISA increased the chance that the calls would be intercepted or that there'd be less "minimization" of anything actually intercepted, so the program caused some increment of fear. But if you admitted that much, you'd have to go back and redo your injury analysis. Only that increment of fear could be used to satisfy the injury requirement.

On the third prong of the test, the plaintiffs needed to show that the relief they sought would cure the injury they complained of. The relief sought was a declaration that the program is illegal. In Batchelder's view, if the program were restructured, warrants would issue secretly, and the plaintiffs' fear would remain:

The only way to redress the injury would be to enjoin all wiretaps, even those for which warrants are issued and for which full prior notice is given to the parties being tapped. Only then would the plaintiffs be relieved of their fear that their contacts are likely under surveillance, the contacts be relieved of their fear of surveillance, and the parties be able to “freely engage in conversations and correspond via email without concern.”

The plaintiffs did not, of course, ask for such an absurdly broad remedy.

Gilman thinks redress could come simply from knowing that the minimization procedures of FISA would apply. He acknowledges that the challenged program might include a policy of nondisclosure of intercepted material, but since the plaintiffs don't know that, they'd get relief from knowing the government had to work within FISA. It is the very secrecy of the program, then, that inflicts injury on the plaintiffs, causing them to change their behavior, and what matters is the difference between the specific process outlined in FISA and the unknown program.

This is a fine but sharp point, and it may be enough to justify answering the precise question on the merits that Gilman goes on to address:

Without expressing an opinion concerning the analysis of the district court, I would affirm its judgment because I conclude that the TSP violates FISA and Title III and that the President does not have the inherent authority to act in disregard of those statutes. The clearest ground for deciding the merits of this appeal is the plaintiffs’ statutory claim, just as the clearest argument for standing is presented by the attorney-plaintiffs. This is not to say that the plaintiffs’ other causes of action lack merit, but simply that this case can, and therefore should, be decided on the narrowest grounds possible.

See the subtle but distinct disrespect he shows to the district judge? He declines to address her opinion at all. He relies wholly on the applicability of the two statutes, the "narrowest grounds possible" -- a restrained approach that he considered necessary. Recall that the district judge, Anna Diggs Taylor, romped through questions of First and Fourth Amendment law and separation of powers and did so without bothering to crank out the neutral-sounding verbiage that might help us believe she only did what the law compelled. Gilman's discussion is circumspect and judicial in tone. Unlike the district judge, he displays a proper sense of the role of a judge, and none of the criticisms I aimed at Judge Taylor in that NYT op-ed apply to him.

I think, in the end, the standing question is difficult in the way that it often is, and Gilman's resolution of the problem is typical of the liberal side of the Supreme Court. It's respectable, but likely to lose in the Court as now configured.

Enough for now. I know I haven't written about Gilman's opinion on the applicability of the statutes and the lack of inherent presidential authority to run free of the statutes. These are difficult questions, this post is way too long, and Saturday is begging for my attention.

I have my ups and downs with the commenters here. (I don't even want to think about what commenters say about me on other blogs... or diavlog websites where I contribute but lack the power to delete.)

Here's an old post from May 2005, where I explain why I'm ending the comments (which I did for a while, before putting them back).

But let's not just focus on the negative. There are some really great commenters. You can bitch about commenters in the comments here, but how about some positive too? May I suggest naming 5 commenters you really like in there along with anything else you might have to say?

Whatever the reason, out of the 400 possible selections on the AFI ballot, only 21 could be characterized as truly American “war movies,” and some of those barely make the cut. Sorry, but we’re not counting fluffy romance films set against a battlefield backdrop (take that, “From Here To Eternity”). And we’re not counting sci-fi battles (forgives us, Yoda does).

We’re talking about classic movie moments that provide a snapshot of American military history, must-see films like “The Sands of Iwo Jima” and “The Green Berets” (two of the Duke’s finest. God bless you, John Wayne, wherever you are).

No, we’re not counting “Forrest Gump,” either. That’s all we have to say about that.

Nicely written, as you can see, by C. Mark Brinkley. Don't miss the note about the author at the bottom of the page. It's on my 10 best author's notes of all time.

He did nothing -- can you believe it? -- to stop the flow of adult movies into the rooms of Marriott Hotels.

"Marriott is a major pornographer. And even though he may have fought it, everyone on that board is a hypocrite for presenting themselves as family values when their hotels offer 70 different types of hardcore pornography," said Phil Burress, president of Citizens for Community Values, an anti-pornography group based on Ohio.

Tony Perkins, president of the Family Research Council, a leading conservative group in Washington, said: "They have to assume some responsibility. It's their hotels, it's their television sets."

During a recent Associated Press interview, Romney said he did not recall pornography coming up for discussion while he was on the Marriott board from 1992 to 2001. Despite being chairman of the board's audit committee, he also said he was unaware of how much revenue pornography may have generated for the hotel chain.

Romney said his current concern is not about pornography per se, but children unwittingly stumbling upon it on the Internet or television.

"I am not pursuing an effort to try and stop adults from being able to acquire or see things that I find objectionable; that's their right. But I do vehemently oppose practices or business procedures that will allow kids to be exposed to obscenity," the former Massachusetts governor said.

I see some good and bad in this.

Good:

1. Romney seems to have a some regard for personal autonomy in the private sphere.

2. Romney shows some respect for free speech of the sexual variety.

3. Romney refrains from using his power to impose his religious beliefs to limit the freedom of the individual.

Bad:

1. Romney -- assuming he's telling the truth -- served on the audit committee without understanding the value of an important source of revenue, which might suggest a certain laxness in management.

2. Romney might be lying (or fudging) about that, in which case, he's not the most honest guy.

3. Assuming Romney understood Marriott's business interest in supplying pornography to its hotel rooms, we need to worry that the three positive things listed above may not hold true when the rights of ordinary citizens are at stake.

ADDED: Somewhat aimlessly looking for etiquette advice about housesitting, I stumbled on Emily Post's 1922 book "Etiquette," and became engrossed in this chapter about house guests. Here's a bit called "A Room for Every Guest":

It is almost unnecessary to say that in no well-appointed house is a guest, except under three circumstances, put in a room with any one else. The three exceptions are:

A man and wife, if the hostess is sure beyond a doubt that they occupy similar quarters when at home.

Two young girls who are friends and have volunteered, because the house is crowded, to room together in a room with two beds.

On an occasion such as a wedding, a ball, or an intercollegiate athletic event, young people don’t mind for one night (that is spent for the greater part “up”) how many are doubled; and house room is limited merely to cot space, sofas, and even the billiard table.

But she would be a very clumsy hostess, who, for a week-end, filled her house like a sardine box to the discomfort and resentment of every one.

In the well-appointed house, every guest room has a bath adjoining for itself alone, or shared with a connecting room and used only by a man and wife, two women or two men. A bathroom should never (if avoidable) be shared by a woman and a man. A suitable accommodation for a man and wife is a double room with bath and a single room next.

A suitable accommodation for a man and wife is a double room with bath and a single room next. And you must never assume that a man and his wife want to sleep in the same bedroom. I love this consideration about sleeping arrangements -- which most people today don't even make for themselves, even in their own houses. They just go on thinking that it's required for the husband and wife to sleep in the same room -- in the same bed. How much suffering could be avoided if people got past this narrow conception of married life. (I'm quite serious!)

I guess this is a good point for me to confess that I've been listening -- on my wide-ranging summer walks around Madison -- to the audiobook of "The Diana Chronicles" by Tina Brown. Why would I "read" such a thing? I was impressed by this WSJ review:

Only Ms. Brown could deploy such words as "hottie" and "propinquity" in the same sentence. In her hands, a trashy (if delicious) tale is rendered vividly mordant. She writes with the feline flair of a woman who has met, but not necessarily liked, most of the characters in her book and who has an uncommonly good way with characterization. Diana, in the early period of her marriage, "was a work in progress, while Charles was a work in aspic." Later, on a hot night in August -- the last night of her life -- Diana sets off in a car in Paris "pursued by the farting motorbikes of the international press." The princess, an aristocrat by birth (her daddy was that "truncheon-faced old buffer," the eighth Earl Spencer), now believed only in "the aristocracy of exposure."

The book's greatest attraction, however, is its sheer wealth of detail, by turns salacious, vinegary, depressing and hilarious. Did you know that Queen Elizabeth is referred to below-stairs as "Betty Battenberg"? (It is a dig at her Germanic origins.) Or that the bulimic Diana's waist shrank from 29 inches to 23½ between the first and last fittings of her wedding dress? The eating disorder was, it seems, triggered by a stray comment from Charles about how "chubby" Diana felt when he put his hand on her waist.

One learns that in November 1983, two years later, the royal couple had an almighty row over Charles's "refusal to spend money on a tennis court [at his Highgrove estate], thereby depriving Diana of her sole outdoor activity." And their sex together wasn't terribly good either, we read, being merely a "roll on, roll off" affair. His Royal Highness, Ms. Brown writes, "had difficulty locating her erogenous zones." But Diana was nothing if not game: To make herself alluring to Charles after the birth of their second son, Harry, she "tried to dance her way into his heart." We are told that "she would put on sexy lingerie and low music and attempt to tantalize him with a striptease he is said to have only 'mildly enjoyed.'"

Looks cheesy -- and both actors are too old for their roles -- but I really enjoyed this story -- in the "Bringing Up Baby" mode -- of a free-spirited woman annoying a very straitlaced man until he understands what it means to be alive. And the house -- which the man built to for another woman -- seems quite wonderful. Though it's probably crazy to have an uncurtained glass corridor connecting the bedroom to the rest of the house, this movie made me want one. Along with a big bathtub right in the bedroom....

The arrest early Wednesday of Gore's son overshadowed Gore's work on the Live Earth concerts. The former Democratic presidential candidate and star of "An Inconvenient Truth" has been planning the worldwide event to raise awareness about the environment and funding for Alliance for Climate Protection, a nonprofit organization he leads.

It's almost as if the son were trying to bring down his father. Drugs in the car and you drive 100 miles per hour? Why?

The Politico reports on the strong impression Barack Obama made with an Iowan community devoted to Transcendental Meditation, and the closest it can come to finding something that might count against Obama is that he "had positioned himself in alignment with the rotation of the earth, in accordance with the teachings of the Maharishi Mahesh Yogi." This proved annoying to the photographers. But I have to laugh. It's so hard to get anything on Obama, isn't it?

The quote above comes from someone in the audience, who seems thoughtful and intelligent.

“Somehow we have lost the capacity to recognize ourselves in each other,” Obama said, to an intently nodding crowd of at least 1,000. “You know, people talk a lot about the federal deficit, but one of the things that I always talk about is …an empathy deficit,” he continued, to applause.

WaPo is on the story that -- like a cowlick -- won't stay down. It seems that Joseph Torrenueva -- hairdresser to the stars (Marlon Brando!) -- "hit it off with" with Edwards back in 2003.

At first, the haircuts were free. But because Torrenueva often had to fly somewhere on the campaign trail to meet his client, he began charging $300 to $500 for each cut, plus the cost of airfare and hotels when he had to travel outside California.

Torrenueva said one haircut during the 2004 presidential race cost $1,250 because he traveled to Atlanta and lost two days of work.

"He has nice hair," the stylist said of Edwards in an interview. "I try to make the man handsome, strong, more mature and these are the things, as an expert, that's what we do."

Response from the Edwards campaign?

"Breaking news -- John Edwards got some expensive haircuts and probably didn't pay enough attention to the bills," said spokeswoman Colleen Murray. "He didn't lie about weapons of mass destruction or spring Scooter Libby; he just got some expensive haircuts."

This story has been dogging you for weeks and that's all you can think of to say? Others did worse?

But why is the friendly hairdresser coming forward with the story of a haircut that cost 3 times as much as the one that already drove people nuts. The hairdresser has feelings. He has pride. When Edwards was asked about that $400 haircut he posited that "the haircuts were some kind of aberration given by 'that guy' his staff had arranged."

"I'm disappointed and I do feel bad. If I know someone, I'm not going to say I don't know them," he said. "When he called me 'that guy,' that hit my ears. It hurt." He paused and then added, "I still like him. . . . I don't want to hurt him."

Captain Ed takes it up a notch: "Now it looks like Edwards has an honesty problem as well as questionable use of campaign funds. This wasn't some one-off; Edwards has used Torrenueva for over three years. The Edwards campaign's attempt to spin this as a single case of bad judgment by a staffer shows a less-than-honest approach to errors by Edwards, which should concern people considering his candidacy seriously, a number that appears to drop on a weekly basis anyway."

TBogg mocks WaPo for following the story at all: "Woodward and Bernstein were pussies compared to Solomon. I smell Pulitzer." Anonymous Liberal takes the same tack: "[T]he article is a perfect example of everything that is wrong with mainstream political reporting... a tour de force of triviality and passive aggressiveness." (A "tour de force of triviality and passive aggressiveness"? -- sounds like everything we want in a blog. How dare MSM horn in!)

The Democratic Daily says: "Didn’t the WaPo’s John Solomon have anything better to do with his time then chase down a prima dona [sic] Hollywood stylist for the scoop?" Brilliant at Breakfast: "If we're going to flog insignificant bullshit, can we at least flog Mitt Romney's treatment of animals just as much?"

Bit of a pattern, no? Let's call it Democratic pattern blogging. Somehow none of the Democratic bloggers can see the deeper credibility issue perceived by our Captain. Which is fine. But must they all say the same thing? And why do they think it's smart just to say that? Obviously, the $400 story hurt Edwards a lot. Now, here's the $1,250 story. It's out. Bitch about The Washington Post's "triviality" all you want, but the story will hurt Edwards, and, really, as self-respecting bloggers looking for readers, why do you all want to keep repeating the same thing?

I take the time to read all the liberal bloggers on the story, and what I learn is that they are boring. They all offer advice to The Washington Post, but look what they are: boring! Clue: You're writers. Say something new!

But maybe you're not writers. You're more good soldiers for the cause. Fine. But I'm not the cause. I'm a reader. If you show your allegiance is other than to the reader, I'm gone.

ADDED: I should say that I think it's important for a presidential candidate to get a proper haircut. The money should be spent on a good haircut, as well as on appropriate makeup and clothes. I'm not shocked that he spent the money, just that he didn't do it in a way that controlled the information. It's obviously the sort of thing that people make a big deal about -- a stupid distraction, but entirely predictable. I can't believe that after making the mistake of letting the story about he $400 haircut come out, the Edwards campaign did not keep Torrenueva happy enough not to opening up to the WaPo. The mistake wasn't spending $1,250 on a haircut. It was calling Torrenueva "that guy."

Says Oliver Stone, after Mahmoud Ahmadinejad declined to become the subject of a Stone documentary. Stone got the bad news: he "is considered part of the opposition in the U.S., but opposition in the U.S. is a part of the Great Satan.” Aw, poor Stone! How much do you have to hate the United States to get Ahmadinejad to like you? Much more than Stone thought, apparently.

ADDED: "[O]pposition in the U.S. is a part of the Great Satan.” A nice free speech point for Independence Day, no?

IN THE COMMENTS: Some good left-vs.-right back and forth. As expected, I'm questioned on the implication that Stone "hates" America. Best response, from Cedarford: "Ahmahinejad just gave a healthy reminder... that no matter how much the Left fights for terrorist's precious civil rights and seek[s] to undermine and demoralize the US military, at the end of the day, Lefties are part of the enemy."

MORE IN THE COMMENTS: Cyrus asks: "Are you suggesting that Oliver Stone hates the United States?"

I answer:

I think he hates what it is to some degree, but that in his own view, he probably feels he loves it more than people who merely love it as it is. My suggestion is mainly that it is not possible for him to hate it enough to win favor with Ahmadinejad. And it's pretty cool that Ahmadinejad's spokesman put it in a way that made clear what many or most Americans think: that the critics of America are an integral part of what America is.

Remember that middle school girl who sued over the dress code because she was put out not being allowed to wear her Tigger kneesocks? Well, she won:

A California judge has blocked a middle school from enforcing a dress code so strict that a student was punished for wearing socks with pictures of Winnie the Pooh on them.

The judge, Raymond A. Guadagni of Napa County Superior Court, issued a preliminary injunction against Redwood Middle School in Napa on Monday, ruling in favor of students and parents who sued the school in March, claiming that its Appropriate Attire Policy violated the right to free speech.

School officials have said the dress code was established to eliminate gang-related symbols and other provocative images.

But students have been punished for wearing denim, T-shirts with messages that warn against drug use and pink ribbons for breast cancer awareness.

We talked about this case back here (where it's clear that the image was not Pooh per se, but Pooh flunky Tigger). I tied it to the then-undecided "Bong Hits 4 Jesus" case:

The school has designed its rule to be content- and viewpoint-neutral. I note that [Toni Kay] Scott also got in trouble for wearing a "drug prevention T-shirt." That's a good sign! I support the "Bong hits 4 Jesus" guy, but Tigger-kneesocks-drug-prevention girl needs to deal with it.

Now that the "Bong Hits 4 Jesus" guy has lost, is the judge more wrong than he would have been before?

First, I'm not looking at the written opinion, and the judge may well have rested on a state law right to free speech. If that's the case, then "Bong Hits 4 Jesus" is irrelevant (conventional verbiage: except for its persuasive value). [ADDED: The opinion is not available in LEXIS.]

Second, there's a distinction between the two cases, but it's a distinction that I think puts the school in a stronger position, because it's not engaging in viewpoint discrimination (which "Bong Hits" permitted). Although a broader rule may feel more repressive to students, it's the way to make the policy viewpoint neutral.

It is better to forbid all messages, including the do-gooder messages Tigger kneesocks girl chose (wisely) to make her resistance to the policy more effective.

IN THE COMMENTS: Susan says "Of course the message can get off track if you're caught driving your Prius at 100 MPH while you're under the influence." She links to this:

Al Gore's son was pulled over for speeding on a California freeway early Wednesday and arrested on suspicion of possessing marijuana and prescription drugs, authorities said.

Al Gore III, 24, was driving a blue Toyota Prius about 100 mph south on the San Diego Freeway when he was pulled over...

The deputies searched the car and found less than an ounce of marijuana along with Xanax, Valium, Vicodin and Adderall...

Let's be fair. It only says "possession," not under the influence.

Anyway, this is a big downside to driving to express the message that you're superior. You'll probably screw up and then people can mock you. (Here's an old post about bumper stickers in a similar vein.)

Maureen Dowd writes about my favorite '08 election topic: the problem of how to wring positive value out of Bill Clinton without getting any of his negative on Hillary. (TimesSelect link.)

Yes, did you see those photos of Bill and Hillary in Iowa, with him in that bright yellow shirt? We all know yellow is the color of hope, and Bill is the man from Hope, and Hillary's name begins with H but her image is not so much one of hope but of grim resignation. Obama is the candidate who embodies hope. (It's the main thing he does!) So, naturally they put a bright yellow shirt on Bill.

The end of Dowd's piece is a riff I think we'll hear her riff quite a few times: Bill will want to have trysts in the White House. How is the Hillary Clinton campaign going to try to keep people from thinking about that when they imagine Bill as the first First Gentleman? It looks like what they're doing is having him appear alongside her, acting out his role as proper husband. But, as Dowd notes, everyone is going to be scrutinizing him to see if it's genuine, and if everyone's looking at him, how will he not be too distracting?

“Sweetie,” [Hillary] says, smiling brightly. “Everything’s going really well. You abide by your five-minute limit and talk only about me. You’re still having a little trouble getting that adoring smile down. In fact, on our first stop you actually looked bored and fidgety while I was talking. But I think we solved that problem today by having you leave the stage as soon as I start speaking. If you can just refrain from looking so longingly at the microphone, our pas de deux will be perfect!”

CORRECTION: I called Bill's shirt a polo shirt. The shirt actually buttoned all the way down the front and had long sleeves. Which I recommend.

I love Dershowitz's reason why the two-sentence order shows that these two very conservative judges ["Federalist Society favorite David Sentelle and solid conservative Karen LeCraft Henderson"] (together with Judge Tatel) acted out of partisan political animosity against Bush: Libby's arguments were so strong that it's the only explanation. Of course.

"... new Chief Justice John Roberts was willing to summon merely the right-wing rump of the court... the court's right-wing gang ... The right-wing rump of the court... the decision of this gang of five... these five willful justices stand in the schoolhouse door..."

In my family, this is known as my "most right wing photo" and jokes have been made along the lines of: "What if you put that on your office door? What would people think? What would they say?"...

[In the comments,] Tonya writes: "I quite like the photo and resist the idea that the right owns the flag. " Somebody else writes: "[A]s long as displaying the flag is considered right wing, the left is not going to win nearly as many elections as they'd like." I'd say, the photo above reads as right wing. The left may love the flag too, though, but not in such a stark display. Here's my most left-wing flag photo, from the Kerry rally here in Madison last fall:

Scooter Libby emerged as the least absurd character in the entire drama, and yet he was the one who committed a crime. President Bush entered the stage like a character from another world, a world in which things make sense.

His decision to commute Libby’s sentence but not erase his conviction was exactly right. It punishes him for his perjury, but not for the phantasmagorical political farce that grew to surround him. It takes away his career, but not his family.

Over the next three days, the political world will be watching as Bill Clinton makes his first campaign swing with Senator Hillary Rodham Clinton, starting this evening at the State Fairgrounds in Des Moines. The questions are interesting: How long will Mr. Clinton talk in introducing Mrs. Clinton? Will he outshine her, as happened at the funeral of Coretta Scott King? Will Mr. Clinton talk about President Bush, or the other Democratic presidential candidates, or stick to talking about his wife? And will the Clintons agree to an extended Mr.-and-Mrs. press conference? (That one is easy: Fat chance).

It's the touchiest subject in the 2008 campaign: How can Hillary use Bill effectively?

Did anyone ever say "Nobody will ever want to marry you" to you? What a frighteningly nasty way to try to control someone's behavior! At least Jackie meant well, and it actually is a good idea not to get fat. (If having someone say you're so fat no one will ever want to marry you actually resulted in weight loss, we'd probably be happy to pay someone to say it to us.) Now, when someone says "nobody will ever want to marry you" to warn you off doing something positive, it's another story.

ADDED: Could it be that the reason we've become so fat in this country is that we no longer accept mothers talking to their children like that?

“I respect the jury’s verdict,” Mr. Bush said. “But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby’s sentence that required him to spend 30 months in prison.”

Like a pardon, a commutation is a form of clemency, granted to the president by the Constitution. But a pardon is an official act of forgiveness, whereas a commutation simply reduces the penalty, without making an official judgment of forgiveness.

Mr. Bush has been urged by some conservatives to grant Mr. Libby an outright pardon.

The president noted in his statement that that the decision to commute “leaves in place a harsh punishment for Mr. Libby.”

“The reputation he gained through his years of public service and professional work in the legal community is forever damaged,” Mr. Bush said. “His wife and young children have suffered immensely. He will remain on probation.”

AND: Earlier in the day, there was glee from some quarters when the Court of Appeals denied Libby's motion for release pending appeal. Firedoglake:

What this says to me is that Libby — or, as I like to call him Inmate 28301-016 — is headed to jail. Do not pass go. Do not collect anything.

[COMMENTS SECTION]

is the frog marching?...

BWAAAAAAAAAAAAAAAA-HAHAHAHAHAHAHAAA!!!....

Scooter Libby, convicted felon, is going to prison.

4th of July present. Barbeque and drinks all around…

The Fitz of July?

ADDED: If you want to know what I think, click the "Libby" label below. I've got nothing new to say.

You have to do something with your life. Here's one idea. Not recommended!

The procedure the monks followed developed over a 900 year period, and though there were different variations, it generally consisted of three equal states, each 1000 days long. For the first 1000 day period the monk adopted a strict diet that consisted of only small amounts of soba (buckwheat) dough and walnuts, hazelnuts, and nutmeg gathered from the surrounding forest. The diet served to reduce the ascetic's body fat dramatically, and as fat decomposes quickly after death, it increased the chances of successful mummification. In the second 1000 day period, the ascetic's diet became even more limited: only bark and the roots of pine tree were ingested. The monk became increasingly emaciated as his body fat reduced to nothingness and his body's water-content similarly declined. Though greatly weakened and increasingly skeletal in appearance, the monk continued to subject himself to long periods of prayer and chanting mantras.

Is it wrong for me to read that and wonder if the dough, walnuts, hazelnut, and nutmeg combination could be adapted for a modern American weight-loss diet? Is it wrong to write a diet book using those foods and processing the religious elements into some New Age-y nonsense to spice it up?

Back to the monks:

Nearing the end of the second 1000 day period, the monk drank tea made from the juice of the Urushi, or Japanese Varnish tree. A caustic, extremely toxic sap—even its vapour can cause a rash—it is usually used to make a highly durable coating for Chinese and Japanese lacquerware. Drinking the tea caused the monk to vomit, perspire and urinate extensively, further reducing the fluids in his body, as well as causing a large build up of poisons. These poisons, however, played an important part of the mummification process, for they would also kill any organism that tried to consume the priest's flesh after death.

The monk, by then severely debilitated and, one assumes, in tremendous physical pain, was ready for the third and final stage in the process, described in a pamphlet from Kaikoji Temple:

“When the priests were near death, stone shelters were constructed three metres underground. The priests were then put into wooden coffins and buried in the shelters with only a bamboo tube for air. In the coffins the priests continued their ascetic practices, sitting in meditation, reciting mantras, and maintaining their strict diet.”

Entombed in his subterranean chamber with only bark and roots to eat and a bell to signal their continued existence to the other monks, the initiate waited for death. “When the sounds of their prayers [or the bell] could no longer be heard, the priests were dug up to confirm their deaths and were then reburied. After three years and three months, they were again dug up, placed in shrines, and worshipped as living gods.” Unlike other mummies, the process finished with death: “No other methods were used in the mummification process”—hence the presence of internal organs that scholars were amazed to discover.

That's some serious performance art.

How much religion does it take to want to starve yourself in the hope of being worshiped as a living god? Perhapsnone.

After reading Andrew Roberts's "A History of the English-Speaking Peoples Since 1900," Bush brought in the author and a dozen other scholars to talk about the lessons. "What can I learn from history?" Bush asked Roberts, according to Stelzer, the Hudson Institute scholar, who participated.

Stelzer said Bush seemed smarter than he expected. The conversation ranged from history to religion and touched on sensitive topics for a president wrestling with his legacy. "He asked me, 'Do you think our unpopularity abroad is a result of my personality?' And he laughed," Stelzer recalled. "I said, 'In part.' And he laughed again."

Much of the discussion focused on the nature of good and evil, a perennial theme for Bush, who casts the struggle against Islamic extremists in black-and-white terms. Michael Novak, a theologian who participated, said it was clear that Bush weathers his difficulties because he sees himself as doing the Lord's work.

"His faith is very strong," said Novak, a scholar at the American Enterprise Institute. "Faith is not enough by itself because there are a lot of people who have faith but weak hearts. But his faith is very strong. He seeks guidance, like every other president does, in prayer. And that means trying to be sure he's doing the right thing. And if you've got that set, all the criticism, it doesn't faze you very much. You're answering to God."

Horne, the British historian, found himself with Bush on another occasion after Kissinger gave the president "A Savage War of Peace," Horne's book on the French defeat in Algeria in the mid-20th century. Bush invited Horne to visit. They talked about the parallels and differences between Algeria and Iraq as Bush sought insight he could apply to his own situation.

Horne said he is not a Bush supporter but was nonetheless struck by the president's tranquility. "He was very friendly, very relaxed," Horne said. "My God, he looked well. He looked like he came off a cruise in the Caribbean. He looked like he hadn't a care in the world. It was amazing."

Trying to get in good with the historians is probably the best strategy at this point. Unless something terrible happens, there seems to be no way he can find his way back to popularity. At least he seems to be taking it well... or do you feel more confident in a man who shows that he's suffering when thing go badly? What is the source of equanimity? In Bush's case, is it depth -- intellectual resources and philosophical insight -- or is it shallowness?

Is it just slipping my mind or is there no word for this? I'm looking for a word for the attitude -- something like sexism or homophobia -- to signify hostility toward people for their failure to be married. I don't mean mere discrimination, such as we find in the tax code or employment insurance plans. I mean actual negative feelings toward the disfavored group. And I don't mean the attitude that has to do only with the suspicion that an unmarried person is gay.

I mean something more general that would apply to the way people feel toward someone who remains single for any reason, including the inability to find a suitable partner or an unwillingness to accept monogamy.

If there is no word, do you think it's because there is not general hostility toward the unmarried? But it is helpful to have words to describe phenomena that turn out not to be true, so we can talk about whether it is true. So, if there is not word, can you coin one?

And I don't mean to suggest that there's no hostility toward the married. I think there is. If you have a word for that let me know.

In turning to the rainbow as a metaphor for happiness, [lyricist Yip] Harburg also drew on decades of American songs. In 1918, a minor Broadway show, Oh, Look!, gave the world a major tune, “I’m Always Chasing Rainbows”, one of the most popular of its day. (Its closing lyric runs, “I’m always chasing rainbows./ Waiting to find a little bluebird in vain.”) Ten years later, Billy Rose and David Dreyer contrived a popular hit, “There’s a Rainbow Around My Shoulder”....

Why would Yip Harburg, a man of considerable imagination, take yet another drink from such an oft-dipped well? Part of it was his conviction that the rainbow image would be useful for the rest of the picture.... Also, Harburg must have intuited that such an image would have seemed ridiculous and corny if were sung by, say, a Manhattan cigarette girl singing on a penthouse balcony. But for an untutored farm girl from Kansas, living in some indeterminate point early in the 20th century, the very predictability of the rainbow image speaks to her old-fashioned values and lack of pretense....

[The song] is a seminal influence on the imagination of impressionable youths to this day, truly a brilliantly crafted song, with Arlen’s achingly adult melody set off by Harburg’s sophisticated use of childlike simplicity. Rarely has such a juxtaposition yielded such a felicitous result. Harburg’s lyrics are so successful, in fact, that they essentially demobilized the words “rainbow” and “bluebird” from serious use in popular song forever after. (The two exceptions, ironically, are Harburg’s own “Look to the Rainbow” from Finian’s Rainbow and Arlen’s collaborator, Johnny Mercer’s, use of “rainbow’s end” in “Moon River.”)

But now aren't you thinking of exceptions? I immediately thought of Lesley Gore singing "Sunshine, Lollipops and Rainbows" ("Everything that's wonderful is what I feel when we're together"). And for "bluebird"... come on, I feel sorry for Stephen Stills that Maslon threw in the part about "bluebird":

Listen to my bluebird laugh.
She can't tell you why.
Deep within her heart, you see,
She knows only crying.

Yet copying the Stills' lyrics, I see that it is obvious that the lyrics without the music don't make much of an impression at all. Perhaps it's not -- after all -- a "serious use" of the word.

So, what songs have used a particular word in such a way as to take it off the list of words a serious lyricist can use? (Do we still have such people?) What does it take to demobilize a word?

Perhaps sometimes this happens only within a particular type of music. Can I think of a good example of that? Betraying my age once again, I think of the mid-60s word "groovy," which spiked in popularity and then became unusable. In 1966, there was "A Groovy Kind of Love" (which was 34 on the Billboard 100 that year -- that great year). When that song came out "groovy" was nearly unknown slang (at least in the U.S.). The following year there was "The 59th Street Bridge Song (Feelin' Groovy)," the Paul Simon song that was a hit by Harper's Bizarre. It's 98 on the Billboard 100 for that year. And, the same year, there's also "Groovin'" by the Young Rascals (11th). When these songs were hits, "groovy" had become a word that no one would actually use in conversation. You might hear it on a TV show, but it would be embarrassing to say it unless you clearly conveyed that you were making fun of the word. But this is a big digression, because no song lyric killed "groovy." "Groovy" was killed by its own sudden, extreme popularity.

So back to the real question. Can you think of a word that is used so decisively well in a song as to remove if from a good lyricist's vocabulary?

The article about "Over the Rainbow" raises a second issue: "it’s the only adult song in the popular canon to be sung by a child." Is it?

(Here's the recent example of a 6-year-old singing the song -- with the audience melting like lemon drops. And here's Katharine McPhee singing the song to great acclaim on "American Idol." I'm on record hating it, by the way.)

Then, little by little, I realized where I was and wished to tell my wishes to those who might satisfy them, but I could not! For my wants were inside me, and they were outside, and they could not by any power of theirs come into my soul. And so I would fling my arms and legs about and cry, making the few and feeble gestures that I could, though indeed the signs were not much like what I inwardly desired and when I was not satisfied--either from not being understood or because what I got was not good for me--I grew indignant that my elders were not subject to me and that those on whom I actually had no claim did not wait on me as slaves--and I avenged myself on them by crying. That infants are like this, I have myself been able to learn by watching them; and they, though they knew me not, have shown me better what I was like than my own nurses who knew me.

In Morse, Roberts goes to great lengths to insert meaning into the silliness of the words on the student banner. He insists the phrase "Bong Hits 4 Jesus" can be read as "celebrating drug use"; indeed to get there he needed only insert the imaginary words, "bong hits [are a good thing]." When did we enter into the era of constitutional interpretation through inserting pretend words? The sign could have as easily been read to say "bong hits [will kill you]."

I completely disagree with Lithwick's conclusion here, but I think she finds interesting ways to make her arguments. Carney has not found an interesting way to write. I mean, if I were stoned I might be fascinated by the phrase "deeply frivolous," but I don't think Carney meant to divert us into contemplating an oxymoron. He's carelessly hurling insults. What's the point? If you want to take down Lithwick, try to write somewhere close to her level.

ADDED; My question for Carney, Lithwick, and the Chief: Is the next post -- above, with the flower -- a pro-drug message?

Of the ideological cases decided this term, the conservative majority... prevailed in 13. The court’s increasingly marginalized liberals... prevailed in only six, including the four Texas death penalty cases.

The difference depended on how Justice Anthony M. Kennedy voted. Remarkably, he was in the majority in all 24 of the 5-to-4 cases....

So what were the 2 "ideological cases" that were not Texas death penalty cases but that the liberal side won? Here's a chart that displays the significant 5-to-4 decisions. One was Massachusetts v. Environmental Protection Agency, where the Court found the state had standing to sue the EPA over its decision that it should not regulate greenhouse gases. The other was apparently not significant enough to go on the chart, and I can't call to mind what it was.

And here's Edward Lazarus, summing things up for the Washington Post and not mincing words:

This term at the Supreme Court was a nearly unmitigated disaster for progressives. By 5-to-4 votes, the justices upheld limits on abortion, dealt a staggering blow to school desegregation, lacerated campaign finance reform, made it harder for women to sue for equal pay, curtailed the free speech rights of students, loosened various legal restrictions on business and greased the skids for convictions in death penalty cases.

No mitigation in that global warming case? Those four Texas death penalty cases did nothing about all that grease on the skids? And how about all the times Scalia and Thomas demanded a stark overruling and the moderate conservatives resisted? A "staggering blow to school desegregation"? Come on, that could only have been "unmitigated" if Kennedy had joined the Roberts plurality. His concurrence is the very definition of mitigation. I'm having trouble taking Lazarus seriously enough to get beyond the first paragraph.

But, for you, dear readers, I will force myself:

Progressives are shell-shocked. They believe that the Roberts court has transformed the branch of government singularly devoted to the protection of our rights and liberties into a facilitator of discrimination and a guardian of powerful political and moneyed interests.

Eh, I can't go on. This is the same kind of hysteria about the Court I've read for as long as I've been studying law (since 1978). It's always just this last year that everything went to hell. For 30 years. Talk to me when you've settled down.

WaPo reports on a big study of the what's really going on under that label:

Five categories of independents emerged from the analysis of the survey results:

"Deliberators," who are classic swing voters.

"Disillusioned," who are acutely upset with politics today.

"Dislocated," who are both social liberals and fiscal conservatives.

"Disguised," who are partisans on the left and right who behave almost identically to Democrats or Republicans.

"Disengaged," who generally sit on the political sidelines.

Can I be 4 of those? thinks the pesky independent -- who will always deny being a closet partisan. But then, that would be part of the closet partisan game.

Unlike most other independents, the Deliberators are generally satisfied with the political system and have positive views of the two parties....

The Disillusioned are highly dissatisfied with the political system. Nine in 10 said the two-party system does not work for them. Many volunteered that "neither party" better represents their views on important issues, including more than seven in 10 who said so about their position on Iraq....

The ideologically Dislocated are far more likely to say that the Democrats better represent their views on social issues, while a majority asserted that the government in Washington is doing too many things that should be left to individuals and businesses. They are also the least religious of any of the five groups.

Disguised partisans generally walk and talk like Democrats or Republicans -- sometimes with even more passion. They reject party labels but usually back one side or the other....

The Disengaged make up about a quarter of all independents and typically have little or no interest in politics. They are the least likely to be registered to vote, the most likely to have at most a high school education, and the youngest of any group. Four in 10 are younger than 30.

Actually, I'm easily categorizable as "dislocated." I wonder what's going on with that "least religious" angle. It's easy to articulate a theory that would annoy people.

'The idea that as a Muslim in this country that you don't have the freedom to express your religion or your views, I mean you've got far more freedom in this country than you do in most Muslim countries,' Blair told Observer columnist Will Hutton... 'The reason we are finding it hard to win this battle is that we're not actually fighting it properly. We're not actually standing up to these people and saying, "It's not just your methods that are wrong, your ideas are absurd. Nobody is oppressing you. Your sense of grievance isn't justified."'...

Blair added: 'How are [we] oppressing them? You're oppressing them when you support the people who are trying to blow them up.'

Blair, who normally chooses his language carefully when he talks about Islamists, also takes a swipe at critics who accused him of undermining civil liberties. 'When I'm trying to change the law in order to make it easier to deport people who engage in terrorism - the idea that that's an assault on hundreds of years of British civil liberties is completely absurd. Some of what is written on this is loopy-loo in its extremism.'

Normally chooses his language carefully. Maybe he still is. "Absurd" is sometimes the right word.

Rap has been deserted by many white fans and middle-class blacks, apparently tiring of the "gangsta" attitude to women, racism, violence and bling - the gold rings and medallions that have made hip-hop a byword for -vulgarity.

"The public has made a choice. They're saying, 'We do not want the nonsense that we see and hear on radio, and we are not putting our money there'," said KRS-One, a rap legend from the Bronx. "Rap music is being boycotted by the American public because of the images that we are putting forward."